Trial by Jury in Civil Cases ...................................................................................................... 1451
The Right and the Characteristics of the Civil Jury ....................................................... 1451
History .......................................................................................................................... 1451
Composition and Functions of Civil Jury .................................................................. 1452
Courts in Which the Guarantee Applies ................................................................... 1453
Waiver of the Right ..................................................................................................... 1453
Application of the Amendment .......................................................................................... 1454
Cases ‘‘at Common Law’’ ............................................................................................. 1454
The Continuing Law-Equity Distinction ................................................................... 1457
Procedures Limiting Jury’s Role ................................................................................ 1460
Directed Verdicts ......................................................................................................... 1461
Jury Trial Under the Federal Employers’ Liability Act ........................................... 1462
Appeals from State Courts to the Supreme Court ........................................................... 1464
In Suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury shall be otherwise re-ex-
amined in any Court of the United States, than according to
the rules of the common law.
TRIAL BY JURY IN CIVIL CASES
The Right and the Characteristics of the Civil Jury
History.—On September 12, 1787, as the Convention was in
its final stages, Mr. Williamson of North Carolina ‘‘observed to the
House that no provision was yet made for juries in Civil cases and
suggested the necessity of it.’’ The comment elicited some support
and the further observation that because of the diversity of practice
in civil trials in the States it would be impossible to draft a suit-
able provision. 1 When on September 15 it was moved that a clause
be inserted in Article III, § 2, to guarantee that ‘‘a trial by jury
shall be preserved as usual in civil cases,’’ this objection seems to
have been the only one urged in opposition and the motion was de-
feated. 2 The omission, however, was cited by many opponents of
ratification and ‘‘was pressed with an urgency and zeal . . . well-
nigh preventing its ratification.’’ 3 A guarantee of right to jury in
civil cases was one of the amendments urged on Congress by the
ratifying conventions 4 and it was included from the first among
Madison’s proposals to the House. 5 It does not appear that the text
1 2 M. FARRAND, RECORDS OF THE FEDERAL CONVENTION OF 1787, at 587 (rev.
2 Id. at 628.
3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1757
(1833). ‘‘[I]t is a most important and valuable amendment; and places upon the high
ground of constitutional right the inestimable privilege of a trial by jury in civil
cases, a privilege scarcely inferior to that in criminal cases, which is conceded by
all to be essential to political and civil liberty.’’ Id. at 1762.
4 J. ELLIOTT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOP-
TION OF THE FEDERAL CONSTITUTION 326 (2d ed. 1836) (New Hampshire); 2 id. at
399–414 (New York); 3 id. at 658 (Virginia).
5 1 ANNALS OF CONGRESS 436 (1789). ‘‘In suits at common law, between man
and man, the trial by jury, as one of the best securities to the rights of the people,
ought to remain inviolate.’’
1452 AMENDMENT 7—CIVIL TRIALS
of the proposed amendment or its meaning was debated during its
Composition and Functions of Civil Jury.—Traditionally,
the Supreme Court has treated the Seventh Amendment as pre-
serving the right of trial by jury in civil cases as it ‘‘existed under
the English common law when the amendment was adopted.’’ 7 The
right was to ‘‘a trial by a jury of twelve men, in the presence and
under the superintendence of a judge empowered to instruct them
on the law and to advise them on the facts and (except in acquittal
of a criminal charge) to set aside their verdict if in his opinion it
is against the law or the evidence.’’ 8 Decision of the jury must be
by unanimous verdict. 9 In Colgrove v. Battin, 10 however, the Court
by a five-to-four vote held that rules adopted in a federal district
court authorizing civil juries composed of six persons were permis-
sible under the Seventh Amendment and congressional enactments.
By the reference in the Amendment to the ‘‘common law,’’ the
Court thought, ‘‘the Framers of the Seventh Amendment were con-
cerned with preserving the right of trial by jury in civil cases where
it existed at common law, rather than the various incidents of trial
by jury.’’ 11
The Amendment has for its primary purpose the preservation
of ‘‘the common law distinction between the province of the court
and that of the jury, whereby, in the absence of express or implied
consent to the contrary, issues of law are resolved by the court and
issues of fact are to be determined by the jury under appropriate
6 It is simply noted in 1 ANNALS OF CONGRESS 760 (1789), that on August 18
the House ‘‘considered and adopted’’ the committee version: ‘‘In suits at common
law, the right of trial by jury shall be preserved.’’ On September 7, the SENATE
JOURNAL states that this provision was adopted after insertion of ‘‘where the consid-
eration exceeds twenty dollars.’’ 2 B. SCHWARTZ, THE BILL OF RIGHTS: A DOCUMEN-
TARY HISTORY 1150 (1971).
7 Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657 (1913); Parsons v.
Bedford, 28 U.S. (3 Pet.) 433, 446–48 (1830).
8 Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1899).
9 Maxwell v. Dow, 176 U.S. 581 (1900); American Publishing Co. v. Fisher, 166
U.S. 464 (1897); Springville v. Thomas, 166 U.S. 707 (1897).
10 413 U.S. 149 (1973). Justices Marshall and Stewart dissented on constitu-
tional and statutory grounds, id. at 166, while Justices Douglas and Powell relied
only on statutory grounds without reaching the constitutional issue. Id. at 165, 188.
11 Id. at 155–56. The Court did not consider what number less than six, if any,
would fail to satisfy the Amendment’s requirements. ‘‘What is required for a ‘jury’
is a number large enough to facilitate group deliberation combined with a likelihood
of obtaining a representative cross section of the community. . . . It is undoubtedly
true that at some point the number becomes too small to accomplish these goals
. . .’’ Id. at 160 n.16. Application of similar reasoning has led the Court to uphold
elimination of the unanimity as well as the 12-person requirement for criminal
trials. See Williams v. Florida, 399 U.S. 78 (1970) (jury size); Apodaca v. Oregon,
406 U.S. 404 (1972) (unanimity); and discussion supra pp. 1408–10.
AMENDMENT 7—CIVIL TRIALS 1453
instructions by the court.’’ 12 But it ‘‘does not exact the retention of
old forms of procedure’’ nor does it ‘‘prohibit the introduction of
new methods of ascertaining what facts are in issue’’ or new rules
of evidence. 13 Those matters which were tried by a jury in England
in 1791 are to be so tried today and those matters which, as in eq-
uity, were tried by the judge in England in 1791 are to be so tried
today, 14 and when new rights and remedies are created ‘‘the right
of action should be analogized to its historical counterpart, at law
or in equity, for the purpose of determining whether there is a
right of jury trial,’’ unless Congress has expressly prescribed the
mode of trial. 15
Courts in Which the Guarantee Applies.—The Amendment
governs only courts which sit under the authority of the United
States, 16 including courts in the territories 17 and the District of
Columbia, 18 and does not apply generally to state courts. 19 But
when a state court is enforcing a federally created right, of which
the right to trial by jury is a substantial part, the States may not
eliminate trial by jury as to one or more elements. 20 Ordinarily, a
federal court enforcing a state-created right will follow its own
rules with regard to the allocation of functions between judge and
jury, a rule the Court based on the ‘‘interests’’ of the federal court
system, eschewing reliance on the Seventh Amendment but noting
its influence. 21
Waiver of the Right.—Parties may enter into a stipulation
waiving a jury and submitting the case to the court upon an agreed
12 Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657 (1935); Walker v.
New Mexico & So. Pac. R.R., 165 U.S. 593, 596 (1897); Gasoline Products Co. v.
Champlin Ref. Co., 283 U.S. 494, 497–99 (1931); Dimick v. Schiedt, 293 U.S. 474,
476, 485–86 (1935).
13 Gasoline Products Co. v. Champlin Ref. Co., 283 U.S. 494, 498 (1931); Ex
parte Peterson, 253 U.S. 300, 309 (1920).
14 Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446–47 (1830); Slocum v. New York
Life Ins. Co., 228 U.S. 364, 377–78 (1913); Baltimore & Carolina Line v. Redman,
295 U.S. 654, 657 (1935); Dimick v. Schiedt, 293 U.S. 474, 476 (1935). But see Ross
v. Bernhard, 396 U.S. 531 (1970), which may foreshadow a new analysis.
15 Luria v. United States, 231 U.S. 9, 27–28 (1913).
16 Pearson v. Yewdall, 95 U.S. 294, 296 (1877); Edwards v. Elliott, 88 U.S. (21
Wall.) 532, 557 (1874); The Justices v. Murray, 76 U.S. (9 Wall.) 274, 277 (1870);
Walker v. Sauvinet, 92 U.S. 90 (1876); St. Louis & K.C. Land Co. v. Kansas City,
241 U.S. 419 (1916).
17 Webster v. Reid, 52 U.S. (11 How.) 437, 460 (1851); Kennon v. Gilmer, 131
U.S. 22, 28 (1889).
18 Capital Traction Co. v. Hof, 174 U.S. 1, 5 (1899).
19 Minneapolis & St. Louis R.R. v. Bombolis, 241 U.S. 211 (1916). See also
Melancon v. McKeithen, 345 F. Supp. 105 (E.D.La.) (three-judge court), aff’d. per cu-
riam, 409 U.S. 943 (1972); Alexander v. Virginia, 413 U.S. 836 (1973).
20 Dice v. Akron, C. & Y. R.R., 342 U.S. 359 (1952). Four dissenters contended
that the ruling was contrary to the unanimous decision in Bombolis.
21 Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525 (1958) (citing Herron v.
Southern Pacific Co., 283 U.S. 91 (1931)).
1454 AMENDMENT 7—CIVIL TRIALS
statement of facts, even without any legislative provision for waiv-
er. 22 Prior to adoption of the Federal Rules, Congress had, ‘‘by
statute, provided for the trial of issues of fact in civil cases by the
court without the intervention of a jury, only when the parties
waive their right to a jury by a stipulation in writing.’’ 23 Under the
Federal Rules of Civil Procedure, any party may make a timely de-
mand for a trial by jury of any issue triable of right by a jury by
serving upon the other parties a demand therefor in writing, and
failure so to serve a demand constitutes a waiver of the right. 24
However, a waiver is not to be implied from a request for a di-
rected verdict. 25
Application of the Amendment
Cases ‘‘at Common Law’’.—The coverage of the Amendment
is ‘‘limited to rights and remedies peculiarly legal in their nature,
and such as it was proper to assert in courts of law and by the ap-
propriate modes and proceedings of courts of law.’’ 26 The term
‘‘common law’’ was used in contradistinction to suits in which equi-
table rights alone were recognized at the time of the framing of the
Amendment and equitable remedies were administered. 27 Illus-
trative of the Court’s course of decision on this subject are two
unanimous decisions holding that civil juries were required, one in
a suit by a landlord to recover possession of real property from a
tenant allegedly behind on rent, the other in a suit for damages for
alleged racial discrimination in the rental of housing in violation of
federal law. In the former case, the Court reasoned that its Sev-
enth Amendment precedents ‘‘require[ed] trial by jury in actions
unheard of at common law, provided that the action involves rights
and remedies of the sort traditionally enforced in an action at law,
rather than in an action at equity or admiralty.’’ 28 The statutory
cause of action, the Court found, had several counterparts in the
22 Henderson’s Distilled Spirits, 81 U.S. (14 Wall.) 44, 53 (1872); Rogers v. Unit-
ed States, 141 U.S. 548, 554 (1891); Parsons v. Armor, 28 U.S. (3 Pet.) 413 (1830);
Campbell v. Boyreau, 62 U.S. (21 How.) 223 (1859).
23 Baylis v. Travellers’ Ins. Co., 113 U.S. 316, 321 (1885). The provision did not
preclude other kinds of waivers, Duignan v. United States, 274 U.S. 195, 198 (1927),
though every reasonable presumption was indulged against a waiver. Hodges v.
Easton, 106 U.S. 408, 412 (1883).
24 FED. R. CIV. P. 38.
25 Aetna Life Ins. Co. v. Kennedy, 301 U.S. 389 (1937); FED. R. CIV. P. 50(a).
26 Shields v. Thomas, 59 U.S. (18 How.) 253, 262 (1856).
27 Parsons v. Bedford, 28 U.S. (3 Pet.) 443, 447 (1830); Barton v. Barbour, 104
U.S. 126, 133 (1881). Formerly, it did not apply to cases where recovery of money
damages was incidental to equitable relief even though damages might have been
recovered in an action at law. Clark v. Wooster, 119 U.S. 322, 325 (1886); Pease
v. Rathbun-Jones Eng. Co., 243 U.S. 273, 279 (1917). But see Dairy Queen v. Wood,
369 U.S. 469 (1962), discussed infra, p. 1459.
28 Pernell v. Southall Realty, 416 U.S. 363 (1974).
AMENDMENT 7—CIVIL TRIALS 1455
common law, all of which involved a right to trial by jury. In the
latter case, the plaintiff had argued that the Amendment was inap-
plicable to new causes of action created by congressional action, but
the Court disagreed. ‘‘The Seventh Amendment does apply to ac-
tions enforcing statutory rights, and requires a jury trial upon de-
mand, if the statute creates legal rights and remedies, enforceable
in an action for damages in the ordinary courts of law.’’ 29
Omission of provision for a jury has been upheld in a number
of other cases on the ground that the suit in question was not a
suit at common law within the meaning of the Amendment, or that
the issues raised were not peculiarly legal in their nature. 30
The amendment does not apply to cases in admiralty and mari-
time jurisdiction, in which the trial is by a court without a jury, 31
nor does it reach statutory proceedings unknown to the common
law, such as an application to a court of equity to enforce an order
29 Curtis v. Loether, 415 U.S. 189, 194 (1974). ‘‘A damage action under the stat-
ute sounds basically in tort—the statute merely defines a new legal duty and au-
thorizes the court to compensate a plaintiff for the injury caused by the defendants’
wrongful breach. . . . [T]his cause of action is analogous to a number of tort actions
recognized at common law.’’ Id. at 195. See also Chauffeurs, Teamsters and Helpers
Local 391 v. Terry, 494 U.S. 558 (1990) (suit against union for back pay for breach
of duty of fair representation is a suit for compensatory damages, hence plaintiff is
entitled to a jury trial); Wooddell v. International Bhd. of Electrical Workers Local
71, 112 S. Ct. 494 (1991) (similar suit against union for money damages entitles
union member to jury trial; a claim for injunctive relief was incidental to the dam-
30 Among such actions or issues were, e.g., (1) enforcement of claims against the
United States, McElrath v. United States, 102 U.S. 426, 440 (1880); see also Gallo-
way v. United States, 319 U.S. 372, 388 (1943); (2) suit under a territorial statute
authorizing a special nonjury tribunal to hear claims against a municipality having
no legal obligation but based on moral obligation only, Guthrie National Bank v.
Guthrie, 173 U.S. 528, 534 (1899); see also United States v. Realty Co., 163 U.S.
427, 439 (1896); New Orleans v. Clark, 95 U.S. 644, 653 (1877); (3) cancellation of
a naturalization certificate for fraud, Luria v. United States, 231 U.S. 9, 27 (1913);
(4) reversal of an order to deport an alien, Gee Wah Lee v. United States, 25 F.2d
107 (5th Cir. 1928), cert. denied, 277 U.S. 608 (1928); (5) damages for patent in-
fringement, Filer & Stowell Co. v. Diamond Iron Works, 270 F. 489 (2d Cir. 1921),
cert. denied, 256 U.S 691 (1921); (6) reversal of an award under the Longshoremen’s
and Harbor Workers’ Compensation Act, Crowell v. Benson, 285 U.S. 22, 45 (1932);
and (7) reversal of a decision of customs appraisers on the value of imports,
Auffmordt v. Hedden, 137 U.S. 310, 329 (1890); (8) a summary disposition by referee
in bankruptcy of issues regarding voidable preferences as asserted and proved by
the trustee, Katchen v. Landy, 382 U.S. 323 (1966); and (9) a determination by a
judge in calculating just compensation in a federal eminent domain proceeding of
the issue as to whether the condemned lands were originally within the scope of the
government’s project or were adjacent lands later added to the plan, United States
v. Reynolds, 397 U.S. 14 (1970).
31 Parsons v. Bedford, 28 U.S. (3 Pet.) 443 (1830); Waring v. Clarke, 46 U.S. (5
How.) 441, 460 (1847); Romero v. International Terminal Operating Co., 358 U.S.
354 (1959). But see Fitzgerald v. United States Lines, 374 U.S. 16 (1963).
1456 AMENDMENT 7—CIVIL TRIALS
of an administrative body. 32 Thus, when Congress committed to
administrative determination the finding of a violation of the Occu-
pational Safety and Health Act with a discretion to fix a fine for
a violation, the charged party being able to obtain judicial review
of the administrative proceeding in a federal court of appeal and
the fine being collectible in a suit in federal court, the argument
that the absence of a jury trial in the process for a charged party
violated the Seventh Amendment was unanimously rejected. ‘‘At
least in cases in which ‘public rights’ are being litigated—e.g., cases
in which the Government sues in its sovereign capacity to enforce
public rights created by statutes within the power of Congress to
enact—the Seventh Amendment does not prohibit Congress from
assigning the factfinding function and initial adjudication to an ad-
ministrative forum with which the jury would be incompatible.’’ 33
On the other hand, if Congress assigns such cases to Article III
courts, a jury may be required. In Tull v. United States, 34 the
Court ruled that the Amendment requires trial by jury in civil ac-
tions to determine liability for civil penalties under the Clean
Water Act, but not to assess the amount of penalty. The penal na-
ture of the Clean Water Act’s civil penalty remedy distinguishes it
from restitution-based remedies available in equity courts, and
therefore makes it a remedy of the type that could be imposed only
by courts of law. 35 On the other hand, a jury need not invariably
determine the remedy in a trial in which it must determine liabil-
ity. Because the Court viewed assessment of the amount of penalty
as involving neither the ‘‘substance’’ nor a ‘‘fundamental element’’
of a common-law right to trial by jury, it held permissible the Act’s
assignment of that task to the trial judge.
More recently still, the Court relied on a broadened concept of
‘‘public rights’’ to define the limits of congressional power to assign
causes of action to tribunals in which jury trials are unavailable.
In Granfinanciera, S.A. v. Nordberg, 36 the Court declared that
Congress ‘‘lacks the power to strip parties contesting matters of
private right of their constitutional right to a trial by jury.’’ The
Seventh Amendment test, the Court indicated, is the same as the
Article III test for whether Congress may assign adjudication of a
32 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48 (1937). See also ICC
v. Brimson, 154 U.S. 447, 488 (1894); Yakus v. United States, 321 U.S. 414, 447
33 Atlas Roofing Co. v. OSHRC, 430 U.S. 442, 450 (1977).
34 481 U.S. 412 (1987).
35 The statute itself specified only a maximum amount for the penalty; the
Court derived its ‘‘punitive’’ characterization from indications in legislative history
that Congress desired consideration of the need for retribution and deterrence as
well as the need for restitution.
36 492 U.S. 33, 51–52 (1989).
AMENDMENT 7—CIVIL TRIALS 1457
claim to a non-Article III tribunal. 37 As a general matter, ‘‘public
rights’’ involve ‘‘‘the relationship between the Government and per-
sons subject to its authority,’’’ while ‘‘private rights’’ relate to ‘‘‘the
liability of one individual to another.’ ’’ 38 While finding room for
‘‘some debate,’’ the Court determined that a bankruptcy trustee’s
right to recover for a fraudulent conveyance ‘‘is more accurately
characterized as a private rather than a public right,’’ at least
where the defendant had not submitted a claim against the bank-
ruptcy estate. 39
The Continuing Law-Equity Distinction.—The use of the
term ‘‘common law’’ in the Amendment as indicating those cases in
which the right to jury trial was to be preserved reflected, of
course, the division of the English and United States legal systems
into separate law and equity jurisdictions, in which actions cog-
nizable in courts of law generally were triable to a jury while in
equity there was no right to a jury. In the federal court system
there were unitary courts having jurisdiction in both law and eq-
uity, but distinct law and equity procedures, including the use or
nonuse of the jury. Adoption of the Federal Rules of Civil Proce-
dure in 1938 merged law and equity into a single civil jurisdiction
and established uniform rules of procedure. Legal and equitable
claims which previously had to be brought as separate causes of ac-
tion on different ‘‘sides’’ of the court could now be joined in a single
action, and in some instances, such as compulsory counterclaims,
had to be joined in one action. 40 But the traditional distinction be-
37 ‘‘[I]f a statutory cause of action . . . is not a ‘public right’ for Article III pur-
poses, then Congress may not assign its adjudication to a specialized non-Article III
court lacking ‘the essential attributes of the judicial power.’ And if the action must
be tried under the auspices of an Article III court, then the Seventh Amendment
affords the parties the right to a jury trial whenever the cause of action is legal in
nature. Conversely, if Congress may assign the adjudication of a statutory cause of
action to a non-Article III tribunal, then the Seventh Amendment poses no inde-
pendent bar to the adjudication of that action by a nonjury factfinder.’’ Id. at 53–
54 (citation omitted).
38 Id. at 51 n.8 (quoting Crowell v. Benson, 285 U.S. 22, 50, 51 (1932)). The
Court qualified certain statements in Atlas Roofing and in the process refined its
definition of ‘‘public rights.’’ There are some ‘‘public rights’’ cases, the Court ex-
plained, in which ‘‘the Federal Government is not a party in its sovereign capacity,’’
but which involve ‘‘statutory rights that are integral parts of a public regulatory
scheme.’’ It is in cases of this nature that Congress may ‘‘dispense with juries as
factfinders through its choice of an adjudicative forum.’’ This does not mean, how-
ever, that Congress may assign ‘‘at least the initial factfinding in all cases involving
controversies entirely between private parties to administrative tribunals or other
tribunals not involving juries, so long as they are established as adjuncts to Article
III courts.’’ 492 U.S. at 55 n.10 (emphasis added).
39 Id. at 55. On the other hand, a creditor who does submit a claim against the
bankruptcy estate subjects himself to the bankruptcy court’s equitable power, and
is not entitled to a jury trial when subsequently sued by the bankruptcy trustee to
recover preferential monetary transfers. Langenkamp v. Culp, 498 U.S. 42 (1990).
40 5 J. MOORE, FEDERAL PRACTICE §§ 38.01–38.05 (2d ed. 1971).
1458 AMENDMENT 7—CIVIL TRIALS
tween law and equity for purposes of determining when there was
a constitutional right to trial by jury remained and led to some dif-
This difficulty has been resolved by stressing the fundamental
nature of the jury trial right and protecting it against diminution
41 Under the old equity rules it had been held that the absolute right to a trial
of the facts by a jury could not be impaired by any blending with a claim, properly
cognizable at law, of a demand for equitable relief in aid of the legal action or dur-
ing its pendency. Hipp v. Babin, 60 U.S. (19 How.) 271, 278 (1857). The Seventh
Amendment was interpreted to mean that equitable and legal issues could not be
tried in the same suit, so that such aid in the federal courts had to be sought in
separate proceedings. Scott v. Neely, 140 U.S. 106, 109 (1891); Bennett v.
Butterworth, 52 U.S. (11 How.) 669 (1850); Lewis v. Cocks, 90 U.S. (23 Wall.) 466,
470 (1874); Killian v. Ebbinghaus, 110 U.S. 568, 573 (1884); Buzard v. Houston, 119
U.S. 347, 351 (1886). Where an action at law evoked an equitable counterclaim the
trial judge would order the legal issues to be separately tried after the disposition
of the equity issues. In this procedure, however, res judicata and collateral estoppel
could operate so as to curtail the litigant’s right to a jury finding on factual issues
common to both claims. But priority of scheduling was considered to be a matter
of discretion. Federal statutes prohibiting courts of the United States from sustain-
ing suits in equity where the remedy was complete at law served to guard the right
of trial by jury and were liberally construed. Schoenthal v. Irving Trust Co., 287
U.S. 92, 94 (1932).
Nor was the distinction between law and equity to be obliterated by state legis-
lation. Thompson v. Railroad Companies, 73 U.S. (6 Wall.) 134 (1868). So, where
state law, in advance of judgment, treated the whole proceeding upon a simple con-
tract, including determination of validity and of amount due, as an equitable pro-
ceeding, it brought the case within the federal equity jurisdiction upon removal. As-
certainment of plaintiff’s demand being properly by action at law, however, the fact
that the equity court had power to summon a jury on occasion did not afford an
equivalent of the right of trial by jury secured by the Seventh Amendment. White-
head v. Shattuck, 138 U.S. 146 (1891); Buzard v. Houston, 119 U.S. 347 (1886);
Greeley v. Lowe, 155 U.S. 58, 75 (1894). But where state law gave an equitable rem-
edy, such as to quiet title to land, the federal courts enforced it, if it did not obstruct
the rights of the parties as to trial by jury. Clark v. Smith, 38 U.S. (13 Pet.) 195
(1839); Holland v. Challen, 110 U.S. 15 (1884); Reynolds v. Crawfordsville Bank,
112 U.S. 405 (1884); Chapman v. Brewer, 114 U.S. 158 (1885); Cummings v. Na-
tional Bank, 101 U.S. 153, 157 (1879); United States v. Landram, 118 U.S. 81
(1886); More v. Steinbach, 127 U.S. 70 (1888). Cf. Ex parte Simons, 247 U.S. 321
By the inclusion in the Law and Equity Act of 1915 of § 274(b) of the Judicial
Code, 38 Stat. 956, the transfer of cases to the other side of the court was made
possible. The new procedure permitted legal questions arising in an equity action
to be determined therein without sending the case to the law side. This section also
permitted equitable defenses to be interposed in an action at law. The same order
was preserved as under the system of separate courts. The equitable issues were
disposed of first, and if a legal issue remained, it was triable by a jury. Enelow v.
New York Life Ins. Co., 293 U.S. 379 (1935). See also Liberty Oil Co. v. Condon
Bank, 260 U.S. 235 (1922). There was no provision for legal counterclaims in an eq-
uitable action, for the reason that Equity Rule 30, requiring the answer to a bill
in equity to state any counterclaim arising out of the same transaction, was not in-
tended to change the line between law and equity and was construed as referring
to equitable counterclaims only. American Mills Co. v. American Surety Co., 260
U.S. 360, 364 (1922); Stamey v. United States, 37 F.2d 188 (W.D. Wash. 1929). Eq-
uitable jurisdiction existing at the time of the filing of the bill was not disturbed
by the subsequent availability of legal remedies, and the scheduling was discre-
tionary. American Life Ins. Co. v. Stewart, 300 U.S. 203 (1937).
AMENDMENT 7—CIVIL TRIALS 1459
through resort to equitable principles. In Beacon Theatres v.
Westover, 42 the Court held that a district court erred in trying all
issues itself in an action in which the plaintiff sought a declaratory
judgment and an injunction barring the defendant from instituting
an antitrust action against it, and the defendant had filed a coun-
terclaim alleging violation of the antitrust laws and asking for tre-
ble damages. It did not matter, the Court ruled, that the equitable
claims had been filed first and the law counterclaims involved alle-
gations common to the equitable claims. Subsequent jury trial of
these issues would probably be precluded by collateral estoppel,
hence ‘‘only under the most imperative circumstances which in
view of the flexible procedures of the Federal Rules we cannot now
anticipate, can the right to a jury trial of legal issues be lost
through prior determination of equitable claims.’’ 43 Then in Dairy
Queen v. Wood, 44 in which the plaintiff sought several types of re-
lief, including an injunction and an accounting for money damages,
the Court held that, even though the claim for legal relief was inci-
dental to the equitable relief sought, the Seventh Amendment re-
quired that the issues pertaining to that legal relief be tried before
a jury, because the primary rights being adjudicated were legal in
character. Thus, the rule that emerged was that legal claims must
be tried before equitable ones and before a jury if the litigant so
In Ross v. Bernhard, 46 the Court further held that the right
to a jury trial depends on the nature of the issue to be tried rather
than the procedural framework in which it is raised. The case in-
volved a stockholder derivative action, 47 which has always been
considered to be a suit in equity. The Court agreed that the action
42 359 U.S. 500 (1959).
43 Id. at 510–11.
44 369 U.S. 469 (1962).
45 If legal and equitable claims are joined, and the court erroneously dismisses
the legal claims and decides common issues in the equitable action, the plaintiff can-
not be collaterally estopped from relitigating those common issues in a jury trial.
Lytle v. Household Manufacturing, Inc., 494 U.S. 545 (1990).
46 396 U.S. 531 (1970).
47 The stockholders’ derivative action is a creation of equity made necessary by
the traditional concept of ‘‘the corporate entity’’ or the ‘‘concept of separate personal-
ity.’’ That is, the corporation is an entity distinct and separate from its sharehold-
ers. Thus, while shareholders were relieved from unlimited liability for corporate li-
abilities, the complementary result was that harm to the corporation did not confer
any right of action upon a shareholder to sue to right that harm. But if the harm
were caused by the abuse of those who managed and controlled the corporation, the
corporation naturally would not proceed against them and the common law courts
would not allow the shareholders to bring an action running to the ‘‘separate per-
sonality’’ of the corporation; equity thus permitted a derivative action in which the
shareholder is permitted to set in motion the adjudication of a cause of action be-
longing to the corporation. Prunty, The Shareholders’ Derivative Suit: Notes on Its
Derivation, 32 N.Y.U. L. REV. 980 (1957).
1460 AMENDMENT 7—CIVIL TRIALS
was equitable but asserted that it involved two separable claims.
The first, the stockholder’s standing to sue for a corporation is an
equitable issue; the second, the corporation’s claim asserted by the
stockholder, may be either equitable or legal. Because the 1938
merger of law and equity in the federal courts eliminated any pro-
cedural obstacles to transferring jurisdiction to the law side once
the equitable issue of standing was decided, the Court continued,
if the corporation’s claim being asserted by the stockholder was
legal in nature, it should be heard on the law side and before a
jury. 48 Whether this analysis will be followed in other areas so
that the right to a jury trial extends to all legal issues in actions
formerly within equity’s concurrent jurisdiction is a question now
Procedures Limiting Jury’s Role.—As was noted above, the
primary purpose of the Amendment was to preserve the historic
line separating the province of the jury from that of the judge,
without at the same time preventing procedural improvement
which did not transgress this line. Elucidating this formula, the
Court has achieved the following results: it is constitutional for a
federal judge, in the course of trial, to express his opinion upon the
facts, provided all questions of fact are ultimately submitted to the
jury, 50 to call the jury’s attention to parts of the evidence he deems
of special importance, 51 being careful to distinguish between mat-
ters of law and matters of opinion in relation thereto, 52 to inform
the jury when there is not sufficient evidence to justify a verdict,
that such is the case, 53 to require a jury to answer specific inter-
rogatories in addition to rendering a general verdict, 54 to direct the
48 Justices Stewart and Harlan and Chief Justice Burger dissented, arguing
that the Seventh Amendment did not expand the right to a jury trial, that the Rules
simply preserved the right as it had existed, and that it was error to think that the
two could somehow ‘‘magically interact’’ to enlarge the right in a way that neither
did alone. Ross v. Bernhard, 396 U.S. 531, 543 (1970).
49 Among the possibilities in which a legal right was enforceable in equity in
the absence of an adequate remedy at law are suits to compel specific performance
of a contract, suits for cancellation of a contract, and suits to enjoin tortious action.
On Ross’ implications, see J. MOORE, FEDERAL PRACTICE §§ 38.11[8.–8], 38.11 (2d
50 Vicksburg & Meridian R.R. v. Putnam, 118 U.S. 545, 553 (1886); United
States v. Philadelphia & Reading R.R., 123 U.S. 113, 114 (1887).
51 Vicksburg & Meridian R.R. v. Putnam, 118 U.S. 545 (1886) (citing Carver v.
Jackson, 29 U.S. (4 Pet.) 1, 80 (1830); Magniac v. Thompson, 32 U.S. (7 Pet.) 348,
390 (1833); Mitchell v. Harmony, 54 U.S. (13 How.) 115, 131 (1852); Transportation
Line v. Hope, 95 U.S. 297, 302 (1877)).
52 Games v. Dunn, 39 U.S. (14 Pet.) 322, 327 (1840).
53 Sparf and Hansen v. United States, 156 U.S. 51, 99–100 (1895); Pleasants v.
Fant, 22 Wall, (89 U.S.) 116, 121 (1875); Randall v. Baltimore & Ohio R.R., 109 U.S.
478, 482 (1883); Meehan v. Valentine, 145 U.S. 611, 625 (1892); Coughran v.
Bigelow, 164 U.S. 301 (1896).
54 Walker v. New Mexico So. Pac. R.R., 165 U.S. 593, 598 (1897).
AMENDMENT 7—CIVIL TRIALS 1461
jury, after the plaintiff’s case is all in, to return a verdict for the
defendant on the ground of the insufficiency of the evidence, 55 to
set aside a verdict which in his opinion is against the law or the
evidence, and order a new trial, 56 to refuse defendant a new trial
on the condition, accepted by plaintiff, that the latter remit a por-
tion of the damages awarded him, 57 but not, on the other hand, to
deny plaintiff a new trial on the converse condition, although de-
fendant accepted it. 58 Nor can a Court of Appeals reverse the jury’s
finding on the issue of reasonableness of petitioner’s conduct, in an
indemnity action for damages respondent had paid petitioner’s em-
ployee, on the ground that as a matter of law petitioner had not
acted reasonably; ‘‘[u]nder the Seventh Amendment, that issue
should have been left to the jury’s determination.’’ 59
Directed Verdicts.—In 1913 the Court in Slocum v. New York
Life Ins. Co., 60 held that a federal appeals court lacked authority
to order the entry of a judgment contrary to the verdict in a case
in which the federal trial court should have directed a verdict for
one party, but the jury had found for the other party contrary to
the evidence; the only course open to either court was to order a
new trial. While plainly in accordance with the common law as it
stood in 1791, the five-to-four decision was subjected to a heavy fire
of professional criticism based on convenience and urging recogni-
tion of capacity for growth in the common law. 61 Slocum was then
impaired, if not completely undermined, by subsequent holdings.
In the first of these cases, the Court held that a trial court had
the right to enter a judgment for the plaintiff on the verdict of the
jury after having reserved decision on a motion by the defendant
for dismissal on the ground of insufficient evidence. 62 The Court
distinguished Slocum while noting that its ruling qualified some of
its assertions in Slocum. 63 In the second case 64 the Court sus-
tained a United States district court in rejecting the defendant’s
55 Treat Mfg. Co. v. Standard Steel & Iron Co., 157 U.S. 674 (1895); Randall
v. Baltimore & Ohio R.R., 109 U.S. 478, 482 (1883), and cases cited therein.
56 Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1889).
57 Arkansas Cattle Co. v. Mann, 130 U.S. 69, 74 (1889).
58 Dimick v. Schiedt, 293 U.S. 474, 476–78 (1935).
59 International Terminal Operating Co. v. N. V. Nederl. Amerik Stoomv,
Maats., 393 U.S. 74, 75 (1968). But see Neely v. Martin K. Eby Construction Co.,
386 U.S. 317 (1967), where the Court held that the Seventh Amendment does not
bar an appellate court from granting a judgment n. o. v. insofar as ‘‘there is no
greater restriction on the province of the jury when an appellate court enters judg-
ment n. o. v. than when a trial court does.’’ Id. at 322.
60 228 U.S. 364 (1913).
61 F. JAMES, CIVIL PROCEDURE 332–33 & n.8 (1965).
62 Baltimore & Carolina Line v. Redman, 295 U.S. 654 (1935).
63 Id. at 661. The Court’s opinions in both Redman and Slocum were authored
by Justice Van Devanter.
64 Lyon v. Mutual Benefit Ass’n, 305 U.S. 484 (1939).
1462 AMENDMENT 7—CIVIL TRIALS
motion for dismissal and in peremptorily directing a verdict for the
plaintiff. The Supreme Court held that there was ample evidence
to support the verdict and that the trial court, in following Arkan-
sas procedure in the diversity action, had acted consistently with
the Federal Conformity Act. 65 In the third case, 66 which involved
an action against the Government for benefits under a war risk in-
surance policy which had been allowed to lapse, the trial court di-
rected a verdict for the Government on the ground of the insuffi-
ciency of the evidence, and was sustained in so doing by both the
appeals court and the Supreme Court. Three Justices, speaking by
Justice Black, dissented in an opinion in which it is asserted that
‘‘today’s decision marks a continuation of the gradual process of ju-
dicial erosion which in one-hundred-fifty years has slowly worn
away a major portion of the essential guarantee of the Seventh
Amendment.’’ 67 That the Court should experience occasional dif-
ficulty in harmonizing the idea of preserving the historic common
law covering the relations of judge and jury with the notion of a
developing common law is not surprising. 68
Jury Trial Under the Federal Employers’ Liability Act.—
One aspect of the problem of delineating the respective provinces
of judge and jury divided the Justices for a lengthy period but now
appears quiescent—cases arising under the Federal Employers’ Li-
ability Act. The argument was frequently couched by the majority
in terms of protecting the function of the jury from usurpation by
judges intent on subverting and limiting remedial legislation en-
acted by Congress, 69 and by the minority in terms of the costs to
65 Ch. 255, § 5, 17 Stat. 197 (1872), now superseded by the Federal Rules of
66 Galloway v. United States, 319 U.S. 372, 389 (1943), wherein the Court said
‘‘the practice has been approved explicitly in the promulgation of the Federal Rules
of Civil Procedure,’’ citing Berry v. United States, 312 U.S. 450 (1941). In the latter
case the Court remarked that the new rule has given ‘‘district judges, under certain
circumstances, . . . the right (but not the mandatory duty) to enter a judgment con-
trary to the jury’s verdict without granting a new trial. But that rule has not taken
away from juries and given to judges any part of the exclusive power of juries to
weigh evidence and determine contested issues of facts—a jury being the constitu-
tional tribunal provided for trying facts in courts of law.’’ Id. at 452–53.
67 319 U.S. 372, 397. The case, being a claim against the United States, need
not have been tried by a jury except for the allowance of Congress.
68 See, e.g., Neely v. Martin K. Eby Construction Co., Inc., 386 U.S. 317 (1967),
interpreting Rules 50(b), 50(c)(2) and 50(d) of the Federal Rules of Civil Procedure,
as well as the Seventh Amendment.
69 E.g., Tiller v. Atlantic Coast Line R.R., 318 U.S. 54 (1943), in which Justice
Black’s opinion of the Court initiated the line of cases here considered; Bailey v.
Central Vermont Ry., 319 U.S. 350 (1943); Tennant v. Peoria & Pekin Union Ry.,
321 U.S. 29 (1944). See Rogers v. Missouri Pacific R.R., 352 U.S. 500, 507–510
(1957). Trial by jury is ‘‘part and parcel of the remedy afforded railroad workers’’
under the FELA. Bailey v. Central Vermont Ry., supra, 354. ‘‘The difference be-
tween the majority and minority of the Court in our treatment of FELA cases con-
AMENDMENT 7—CIVIL TRIALS 1463
the Supreme Court in time and effort spent in evaluating the quan-
tum of evidence necessary to create a jury question. 70
Although the considerations present in the FELA cases were
not inherently different from those in any civil case where the di-
rection of a verdict or a decision of an issue by the court may raise
sub silentio the issue whether the Seventh Amendment right to a
jury trial has been impaired by court usurpation of the jury func-
tion, cases under the FELA, which retained the common-law re-
quirements of negligence as a prerequisite to recovery, involved pe-
culiarly difficult decisions as to the adequacy of proof of negligence.
‘‘Special and important reasons for the grant of certiorari in these
cases are certainly present,’’ the Court wrote in a leading case,
‘‘when lower federal and state courts persistently deprive litigants
of their right to a jury determination.’’ 71 The operating test was:
‘‘Under this statute the test of a jury case is simply whether the
proofs justify with reason the conclusion that employer negligence
played any part, even the slightest, in producing the injury or
death for which damages are sought. It does not matter that, from
the evidence, the jury may also with reason, on ground of prob-
ability, attribute the result to other causes, including the employ-
ee’s contributory negligence. Judicial appraisal of the proofs to de-
termine whether a jury question is presented is narrowly limited
to the single inquiry whether, with reason, the conclusion may be
drawn that negligence of the employer played any part at all in the
injury or death. Similar issues have arisen under such statutes as
the Jones Act 72 and the Safety Appliance Act. 73
‘‘Judges are to fix their sights primarily to make that appraisal
and, if that test is met, are bound to find that a case for the jury
is made out whether or not the evidence allows the jury a choice
of other probabilities.’’ 74 A persistent dissent in the line of cases
cerns the degree of vigilance we should exercise in safeguarding the jury trial—
guaranteed by the Seventh Amendment.’’ Harris v. Pennsylvania R.R., 361 U.S. 15,
17 (1959) (Justice Douglas concurring). ‘‘[T]his Court is vigilant to exercise its power
of review . . . to correct instances of improper administration of the Act and to pre-
vent its erosion by narrow and niggardly construction.’’ Rogers v. Missouri Pacific
R.R., supra, at 509.
70 Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 524 (1957) (Justice
Frankfurter dissenting), contains a lengthy review and critique of the Court’s prac-
71 Rogers v. Missouri Pacific R.R., 352 U.S. 500, 510 (1957).
72 Schulz v. Pennsylvania R.R., 350 U.S. 523 (1956); Ferguson v. Moore-McCor-
mack Lines, 352 U.S. 521 (1957); Michalic v. Cleveland Tankers, 364 U.S. 325
(1960). See also Senko v. La Crosse Dredging Corp., 352 U.S. 370 (1957); A. & G.
Stevedores v. Ellerman Lines, 369 U.S. 355 (1962).
73 Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 525 n.2 (1957) (Justice
74 Id. at 506–07. The cases are collected id. at 510 n.26. The cases are tabulated
and categorized in Wilkerson v. McCarthy, 336 U.S. 53, 68–73 (1949) (Justice Doug-
1464 AMENDMENT 7—CIVIL TRIALS
expressed the fear that in FELA cases ‘‘anything that a jury says
goes, with the consequences that all meaningful judicial super-
vision over jury verdicts in such cases has been put at an end. . . .
If so, . . . the time has come when the Court should frankly say
so. If not, then the Court should at least give expression to the
standards by which the lower courts are to be guided in these
Appeals From State Courts to the Supreme Court
The clause of the Amendment prohibiting the re-examination
of any fact found by a jury is not restricted in its application to
suits at common law tried before juries in courts of the United
States. It applies equally to a case tried before a jury in a state
court and brought to the Supreme Court on appeal. 76 Note, how-
ever, that the Court has frequently indicated that in cases involv-
ing a claim of a denial of constitutional rights it is free to examine
and review the evidence upon which lower court conclusions are
based, a position that under some circumstances could conflict with
the principle of jury autonomy. 77
las concurring), and Harris v. Pennsylvania R.R., 361 U.S. 15, 16–25 (1959). See
also Harrison v. Missouri Pacific R.R., 372 U.S. 248 (1963); Basham v. Pennsylvania
R.R., 372 U.S. 699 (1963).
75 Harris v. Pennsylvania R.R., 361 U.S. 15, 27–28 (1959) (Justice Harlan dis-
senting). See also Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 524 (1957)
(Justice Frankfurter dissenting); Dick v. New York Life Ins. Co., 359 U.S. 437, 447
(1959) (Justice Frankfurter dissenting).
76 The Justices v. Murray, 76 U.S. (9 Wall.) 274, 278 (1870); Chicago, B. & Q.
R.R. v. City of Chicago, 166 U.S. 226, 242–46 (1897).
77 See Time, Inc. v. Pape, 401 U.S. 279, 284–92 (1971), and cases cited therein.